Legislative Measures to deal with Terrorism | UPSC Mains: Internal Security & Disaster Management PDF Download

Unlawful Activities (Prevention) Amendment Act, 2019

• Anti-terrorist legislative strategy: The legislation is the cornerstone of India's anti-terrorist legislative strategy. It confirms that the government is accountable for maintaining citizens' security. It aids in preserving India's independence and unity.
• Declaration of stand-alone person: By not designating individuals as terrorists, would give them an opportunity to circumvent the law and order which they would simply gather under a different name and keep up their terror activities.
• Reduction in Time process: The UAPA Act allows the seizure of property of a person who relates to terrorism without taking approval of the Director General of Police in case an investigation is conducted by an officer of NIA.
• Lone wolf attacks: This is also important in the context of lone wolf attacks, which do not belong to any organization.
• Elimination of terrorism: The Terrorists and insurgents’ group in India continue to receive material support and funds, the main drivers of terrorism from several sources in India.
• Speedy justice delivery: Officers in the rank of Inspector are empowered to investigate cases under the Act.

Challenges Of UAPA Act, 2019:

• Definitions: UAPA Act does not define terrorism and definition of ‘unlawful activity’ is such that it covers almost every kind of violent act be it political or non-political that makes the definition vague and unclear.
• Contradiction to fundamental rights: Fundamental Rights like Article 14, 19(1)(a), 21, do not provide any opportunity for the individual termed as a terrorist to justify his case before the arrest.
• Transparency issue: The information which declares a person a terrorist can be withheld from him/her for 6 months.
• Excessive powers: In the UAPA Act’s 2019 amendment there are no objective criteria have been laid for the categorization of an individual as a terrorist and the government has been provided with unfettered powers to designate anyone as a terrorist.
• Biased Appeal process: Act provides for appeal, but the government itself will set up a three-member review committee, two of whom can be serving bureaucrats.
• Arbitrary Process: Those arrested under the UAPA Act can be imprisoned for up to 180 days without a charge sheet being filed by the prosecution.
• Low conviction rate: Compared to the total cases registered only the 5922 persons arrested under the Act between 2016-2019, only 2.2% ended in convictions by the court.
• Innocent until proven guilty: This UAPA Act amendment violates the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which identify "innocent until proven guilty" as a human right.

National Investigation Agency Act, 2008 

• The National Investigation Agency (NIA) was set up in 2009 under the NIA Act, 2008. It was set up in the wake of the Mumbai terror attack.
• At present, NIA is functioning as the Central Counter Terrorism Law Enforcement Agency in India. The National Investigation Agency (Amendment) Bill, 2019 which enhances the jurisdiction and powers of NIA. The amendments will allow NIA to probe cybercrimes and cases of human trafficking.

It is a central agency to investigate and prosecute offences:

• affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States.
• against atomic and nuclear facilities.
• smuggling in High-Quality Counterfeit Indian Currency.

It is also the Central Counter Terrorism Law Enforcement Agency.

• It is empowered to deal with terror related crimes across states without special permission from the states.
• Established under the National Investigation Agency Act 2008.
• Works under the Ministry of Home Affairs.

Mandate of NIA:

• It aims to be a thoroughly professional investigative agency matching the best international standards at the national level, by developing into a highly trained, partnership-oriented workforce.
• It aims to discourage the existing and potential terrorist groups/individuals.
• It aims to develop as a storehouse of terrorist related information
• The agency aims to match the best international standards in counter terrorism and other national security related investigations at the national level by developing into a highly trained, partnership oriented workforce.

Jurisdiction:

• A State Government may request the Central Government to hand over the investigation of a case to the NIA, provided the case has been registered for the offences as contained in the schedule to the NIA Act.
• Central Government can also order NIA to take over investigation of any scheduled offense anywhere in the India.

Special NIA Courts:

• Various Special Courts have been notified by the Central Government of India.
• Any question as to the jurisdiction of these courts is decided by the Central Government.
• These are presided over by a judge appointed by the Central Government on the recommendation of the Chief Justice of the High Court with jurisdiction in that region.
• Supreme Court of India has also been empowered to transfer the cases from one special court to any other special court within or outside the state.

How does the NIA take up a probe?

• State government refers case: As provided under Section 6 of the Act, State governments can refer the case pertaining to the scheduled offences registered at any police station to the Central government (Union Home Ministry) for NIA investigation.
• Central government directs the agency: After Assessing the details made available, the Centre can then direct the agency to take over the case.
  • State governments are required to extend all assistance to the NIA.
• Outside India: Where the Central government finds that a scheduled offence has been committed at any place outside India to which this Act extends, it can also direct the NIA to register the case and take up an investigation.
• Can investigate allied offences: While investigating a scheduled offence, the agency can also investigate any other offence that the accused is alleged to have committed if the offence is connected to the scheduled offence.

Impediments in its operative functioning:

• Due to law and order being state subject, NIA has faced coordination issues with regards to state police.
• Quality manpower is a constant challenge, especially with regards cyber attack capabilities.
• With regards to tech, it is dependent of foreign imports.
• There are no dedicated officers; the officers are recruited from Central State police, Central armed police forces on deputation.
• Lack of coordination mechanism with other specialised agencies like RAW, IB, State police etc. E.g.: Confusion during Pathankot attacks
• Lack of experts to deal with the cybercrimes.
• Lack of financial autonomy.

Measures needed:

• Granting of financial autonomy similar to CAPF.
• Although special courts will speed up judgments but filling up the vacancies of judiciary is a challenge in present times.
• To investigate cyber-crimes, need skilled manpower and ethical hackers.
• As many experts recommend, it is time for India to have a documented national security doctrine
• The doctrine should be accompanied by a security strategy that should spell out the state response to various kinds of security challenges.

National Security Act

• The NSA is a preventive detention law enacted in 1980 to maintain public order and national security.
• Preventive Detention involves the detainment (containment) of a person in order to keep him/her from committing future crimes and/or from escaping future prosecution.
  1. Article 22 (3) (b) of the Constitution allows for preventive detention and restriction on personal liberty for reasons of state security and public order.
  2. Article 22(4) states that no law providing for preventive detention shall authorize the detention of a person for a longer period than three months.

Powers to the Government:

• The NSA empowers the Centre or a State government to detain a person to prevent him from acting in any manner prejudicial to national security.
• The government can also detain a person to prevent him from disrupting public order or for maintenance of supplies and services essential to the community.

Period of Confinement:

• The maximum period for which one may be detained is 12 months.

Establishment of National Security Council:

• The act also provides for the constitution of a National Security Council, which advises the Prime Minister on matters relating to national security.